Controversial quota drives immigration detention boom

Published October 14, 2013 - 4:17am

By Nick Miroff

The Washington Post

KARNES CITY, Texas — In the past five years, Homeland Security officials have jailed record numbers of immigrants, driven by a little-known congressional directive known on Capitol Hill as the “bed mandate.”

The policy requires U.S. Immigration and Customs Enforcement (ICE) to keep an average of 34,000 detainees per day in its custody, a quota that has steadily risen since it was established in 2006 by conservative lawmakers who insisted that the agency wasn’t doing enough to deport unlawful immigrants.

But as illegal crossings from Mexico have fallen to near their lowest levels since the early 1970s, ICE has been meeting Congress’s immigration detention goals by reaching deeper into the criminal justice system to vacuum up foreign-born, legal U.S. residents convicted of any crimes that could render them eligible for deportation. The agency also has greatly expanded the number of undocumented immigrants it takes into custody following traffic stops by local police.

Department of Homeland Security (DHS) officials say they are not needlessly jailing immigrants to meet a quota, and find plenty of candidates for detention and deportation by targeting criminals who pose a threat to public safety and border security.

But critics of the mandate note that the majority of ICE detainees are not violent offenders. Many are eventually allowed to remain in the United States by immigration judges, but may spend months in costly federal custody, even when far cheaper alternatives are available, such as ankle bracelets and other forms of electronic monitoring.

With federal spending on immigration detention and deportation reaching $2.8 billion a year, more than doubling since 2006, the mandate has met growing skepticism from budget hawks in both parties, particularly after DHS officials told Congress during the “sequestration” debate in April that the agency could save money by lowering the bed mandate to 31,800, and relying on cheaper alternatives to jails. But House Republicans successfully pushed back, set the mandate at 34,000 detainees and ordered ICE officials to spend nearly $400 million more than they requested.

ICE operations are largely unaffected by the government shutdown, since the agency’s workers are among the federal employees considered essential, DHS officials have said.

Some of the additional money provided by Congress will be spent filling beds at places such as the brightly painted Karnes County Civil Detention Center, which opened here last year amid bobbing oil derricks on the rolling plains south of San Antonio. It holds more than 600 detainees, but ICE prefers not to call them that.

They are “residents,” guarded by unarmed “resident advisers,” and they sleep in air-conditioned, unlocked “suites” with flat-screen TVs overlooking volleyball courts and soccer fields. The low-security facility, built and operated on the government’s behalf by a private contractor, the GEO Group, offers computer labs, libraries and microwaves for making popcorn.

“This place is great,” said one young man from Honduras, strumming a government-issued bass guitar in a recreation room, along with newfound band mates from El Salvador and Guatemala.

Most detainees here are Central American migrants picked up along the border. Having requested asylum, they await an interview by ICE to determine if they have a legitimate fear of returning home.

In the meantime, they can earn $3 a day working on cleaning crews or in the laundry room, and there are free English classes, “life skills” instruction and tutorials in Microsoft Word and Excel. They dine in a cafeteria cheerfully appointed with Southwestern art and suggestive Georgia O’Keefe prints.

The jail has become a showcase for improved detention conditions, especially as ICE relies less on the low-cost bed space offered by aging, rural county jails and signs contacts with for-profit private detention companies that include incentives such as guaranteed minimum-occupancy payments.

Congress’s expanding detention goals have been a boon to the contractors, especially Florida-based GEO Group and Tennessee-based Corrections Corporation of America.

The two companies have won hundreds of millions of dollars’ worth of ICE contracts in recent years while lobbying Congress on immigration enforcement issues.

Former ICE director Julie Myers Wood, who led the agency from 2006 to 2008 under President George W. Bush, said a congressional mandate for ICE to maintain a minimum number of detainees was a reasonable guideline at the outset of her tenure, when the Border Patrol was making more than a million arrests per year.

But today, she said, “it doesn’t make sense.”

Defenders of the bed mandate say it remains a useful tool to compel ICE to devote the maximum amount of resources to catching and deporting illegal migrants and foreign-born legal residents who commit crimes, including dangerous gang members, rapists and other violent felons.

With an estimated 11 million undocumented immigrants living in the United States, they argue, there’s still a vast pool of potential deportees for the agency to pursue, or as Rep. John Abney Culberson, R-Texas, put it, “plenty of customers.”

“We know ICE can fill more than 34,000 beds, so why would they use less?” said Culberson, a member of the House Homeland Security appropriations subcommittee, which ties ICE funding to its compliance with the mandate.

Four countries — Mexico, Guatemala, Honduras and El Salvador — accounted for 88 percent of all immigration detainees in 2011, the most recent year for which statistics were available.

As illegal border crossings have declined, a growing portion of ICE detainees are legal U.S. residents who face deportation after completing a jail term or probation, targeted by ICE’s Secure Communities program.

Of the 33,391 immigrants held in federal custody on Sept. 7 — a single-day snapshot provided by ICE — 19,864 were convicted criminals, according to the agency.

Yet ICE’s definition of criminals includes a broad range of offenders, and a 2009 internal review found that only 11 percent of detainees had been convicted of violent crimes.

Jose Luis Vargas, a legal U.S. resident since 1986, was arrested by San Antonio police three years ago after neighbors reported a marijuana plant growing in his garden, among his tomatoes and prickly pear cactus.

Vargas, 52, said he had planned to make a poultice with the plant to alleviate joint pain from diabetes, which has left him with impaired vision and an amputated finger.

After two years on probation for the marijuana charge, ICE officials took Vargas into custody and tried to deport him to Mexico. He spent nearly three months in ICE’s South Texas Detention Facility until an immigration judge ordered his release.

“They didn’t treat me badly, but when I’d have to ride to the hospital, I’d miss lunch, and being in handcuffs so much was bad for my circulation,” Vargas said.

Immigrant rights advocates say detainees like Vargas, who was two years shy of paying off the 30-year mortgage on his San Antonio home, should be allowed to remain under cheaper, less severe forms of ICE supervision, such as GPS-enabled electronic monitoring.

Those alternatives can cost less than $10 a day, they say, while the cost of keeping someone in immigration jail exceeds $150.

“The explicit purpose of ICE detaining people is to make sure they show up for their immigration hearings, so it would make sense to consider less costly, more humane alternatives that meet that same goal,” said Ruthie Epstein, legislative policy analyst for the American Civil Liberties Union.

Immigrant advocates and attorneys say the majority of detainees taken into ICE custody today have convictions for lesser offenses such as drug possession — or no criminal record at all.

Nearly 48 percent of the 350,000 immigrants over the past 16 months who triggered an “ICE detainer” — a request by the agency that local jails or police hold an individual until ICE can pick them up — had no criminal convictions, not even traffic violations, according to the TRAC Immigration Project.

Almost half of all potential deportees who appear in immigration court are allowed to remain in the United States, according to TRAC data.

But many end up spending months, even years, in ICE custody while they await a ruling.

ICE officials have testified to Congress that Alternatives to Detention programs — geared toward legal residents with family and community ties — have had compliance rates of 96 percent with court-ordered appearances.

Yet the agency’s budget for alternatives is less than $100 million, dwarfed by its detention budget. The comprehensive immigration reform bill approved by the Senate in June would expand use of these methods, but the legislation faces increasingly dim prospects in the House.

ICE officials also note that they have limited discretion over which detainees are eligible for alternative forms of supervision. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 greatly expanded the scope of crimes that could trigger deportation.

More than two-thirds of the immigrants in ICE custody on Sept. 7, for instance, were “mandatory cases,” including drug offenders, violent offenders and anyone involved in prostitution-related crimes, among other violations that trigger automatic detention. Pending immigration legislation would give greater discretion to federal judges to assign detention on a case-by-case basis.

“We’re not forcing poor little people to be in there to meet a quota,” said Rep. John Carter, R-Texas, chairman of the House Homeland Security appropriations subcommittee.

When DHS attempted to lower the bed mandate to 31,800 this year, saying it didn’t need to detain that many people, Carter and other lawmakers pushed back, setting it at 34,000. “The law is the law, and none of these people are being held contrary to the law,” he said.